In order to develop a framework, which can form the basis for the development of a European property law this book seeks to provide a comparative analysis of property law from the perspective of four European legal systems, and of European law, focusing on the numerus clausus principle. The book offers theoretical insights on how substantive property law, European law, and, to a certain extent, private international law intersect. Inspiration for this is drawn from the mixed legal system of South Africa.
The principle of numerus clausus, one of the fundamental principles of property law, is adhered to by most legal systems. In this book an analysis of the property law systems of France, Germany, the Netherlands and England is provided. A description is given of the content of available property rights in each of these systems, followed by an examination as to whether these rights form a closed system and whether private parties are given freedom to give shape to property rights or even create new types of rights.
In the last decades, property law has come under pressure to allow more party autonomy. In other words: property law has become more and more subject to pressure from contract law. Private parties attempt to draft their contracts in such a way that their contractual arrangements are given property effect. Sometimes they also attempt to make use of a property right in a way that was not foreseen by legislature or courts. As a result rights have come into existence that are intermediary between the law of contract and the law of property.
Moreover, the systems of property law are also subject to a growing influence from European legislation. The development of the internal market in the European Union increasingly forces Member States to answer the question whether and, if the answer is affirmative, in what way property rights created in another Member State should be recognised. Substantive property law intersects here. Until now, national legal systems generally resist this influence of European law and use the principle of numerous clausus as a justification. It is to be questioned whether the numerus clauses principle can still act as a guardian against the influence of foreign and European law.
Bram Akkermans studied at the European Law School, University of Maastricht (2002) and the University of Stellenbosch, South Africa. After his study he was program developer and lecturer in international and European law at the Institute of Marketing Management, Fontys University in Eindhoven, PhD student (junior researcher) at Maastricht University, and since 2008 Assistant Professor of European private law. His thesis, under the supervision of Prof. Mr. j.h.m. van Erp, concerns the closed system of property rights (numerus clausus) in Europe and was published in 2008 under the title 'The principle of numerus clausus in European property law'. His research focuses on the development of European law on the national private law, in particular property law. He teaches comparative and European property law, contract law and liability law. He is training coordinator of the European Law School (bachelor studies) in Maastricht and Deputy Director of the Maastricht European Private Law Institute (M-EPLI). Since 2012 he is also ' invited fellow' at the South African Research Chair in Property Law at the University of Stellenbosch, South Africa.
